Nothing is more sacrosanct to trial lawyers and judges than “The Record.” Walk into any courtroom during a trial and one of the first things you’ll notice is the person sitting in front of the bench, hands moving feverishly on a small key board. That is the court reporter whose job it is to keep an accurate record of every word said during the trial. Coupled with all the paper that gets into the court file before and during the trial, it constitutes “The Record” of that case. The lawyers you see in that courtroom may look and act like they are engaging in an oral trial, but they are constantly thinking of The Record. To paraphrase General MacArthur, the last conscious thought of a trial lawyer before dying, “will be of The Record, and The Record, and The Record.”

Said differently, the facts of any case are decided at trial. Thereafter, the only legitimate issues in appeals are what rules of law to apply to those facts or how to apply a rule of decision to those facts.

And, if the case is appealed, nothing outside The Record can be considered by any appellate court. If it isn’t in the record, it doesn’t exist.

Think of it as a prison, jailing all the lawyers and all the judges for the rest of the case. No one may escape the prison walls of The Record.

I chose the “prison walls” metaphor to describe the importance and the role of The Record deliberately because of something astonishing that happened in the United States Supreme Court last month during oral argument of a prison case.

San Quentin

The case was Schwarzenegger v. Plata, the California prison case. The Eighth Amendment to the Constitution prohibits “cruel and unusual punishments.” California has about twice the number of inmates in its prisons than its prisons are designed to hold. In a lawsuit brought by prisoners, the state admits it is violating that constitutional rights of its inmates by housing so many prisoners in such crowded conditions. The state admitted, in The Record, its violation. The federal trial court decided, as a matter of fact, that conditions in California’s prisons are awful; so bad, in fact, that prisoners’ rights are systematically violated every day.

The only issue in the case is what to do about that wholesale, massive violation of constitutional rights.

Doing its legislative job, Congress passed a law reforming how federal courts handle prison litigation. Congress gave to the federal courts a “last resort” option of ordering a state to release prisoners before their jail time is up, if all other overcrowding remedies have failed. Doing his executive job, the President of the United States signed the law. Doing their judicial job, a special three-judge federal court in California, ordered California to release about 35,000 prisoners over the next two years to relieve the overcrowding. It was the “last resort” Congress ordered to stop constitutionally prohibited cruel and unusual punishments. (The lawsuit is already twenty years old.)

The state appealed that order, arguing that it is too early to invoke the last resort remedy of release.

Folsom State Prison

Remember first, there is not the slightest disagreement that the state has violated prisoners’ rights. Here is the state’s Supreme Court lawyer on the point, “nobody doubts for a moment that there have been very significant violations of constitutional rights years gone by . . .) (Tr. p-22)

The three-judge federal court, after trial and based upon the evidence at trial, found – as a matter of fact – that California could release or transfer up to 40,000 prisoners with no impact on public safety. Even the state itself agrees that it could release that many if it had five years to do it, rather than the court-imposed two years. Here again is the state’s own lawyer,

JUSTICE KAGAN: Mr. Phillips, sorry, but on a — on a different subject. Does the State stand by its representation that it can do this without any public safety impact in 5 years?

MR. PHILLIPS: Yes. I mean, we made that submission to the court, and we — we believe that we could comply with it.” (Tr. p-77)

Moreover, all the experts who testified at the trial, including the state’s experts agreed that releasing or transferring that many prisoners would not affect public safety. (After all, the state isn’t going to release convicted murderers, rapists, and bank-robbers; it’s going to release old prisoners, technical probation violators, and smokers of marijuana.)

To conclude: The Record – set in stone and from which there is no legal escape – contained no evidence that public safety would be harmed. The justices of the Supreme Court are duty-bound to honor that record and the factual finding of the lower court. There will be no public safety impact if the lower court’s decision is affirmed on appeal. None. As a matter of law.

President Bush and Justice Alito

So what was astonishing during the oral argument of this case? One of the Justices seemed either unaware of the fundamental legal rule or just didn’t care. Here is Justice Sam Alito,

This is going to have — it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. . . . We will see, and the people of California will see: Are there more crimes or are there not?

The Justice was convinced that a release order in Pennsylvania had resulted in an increase in murder in that state. Never mind that no such evidence was in The Record in the case he was judging. Never mind that all the experts who were in the record agreed that no release order has ever increased the crime rate. Never mind that fifty pages of the trial court’s order in the California case was directed specifically at that issue and concluded, based upon all the expert testimony, found as a matter of fact that no public safety impact will result.

Sam Alito doesn’t care,

JUSTICE ALITO: That’s a very indirect way of addressing the problem, and it has collateral consequences. If — if I were a citizen of California, I would be concerned about the release of 40,000 prisoners. And I don’t care what you term it, a prison release order or whatever the –

MR. SPECTER: Crowding –

JUSTICE ALITO: — terminology you used was. If 40,000 prisoners are going to be released, do you really believe that if you were to come back here 2 years after that, you would be able to say they haven’t — they haven’t contributed to an increase in crime. . . .

Those are the questions and comments of a true judicial activist.

In contra-point, here is a comment from the same oral argument from a justice who is not an activist,

Justice Kagan : Mr. Phillips, my trouble listening to you is that it seems as though you’re asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought: We’ve done everything we can, the receiver has done everything he can; this just isn’t going anywhere and it won’t go anywhere until we can address this root cause of the problem.

And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they’ve been dealing with for 20 years?

Monday night and early Tuesday morning feature a total lunar eclipse, visible throughout all of North America. This eclipse falls on the winter solstice, a coincidence that has not happened for more than 300 years and will not happen again in the lifetime of anyone reading this blog on the date of its posting. (The next time falls on December 21, 2094 and I expect to be gone as will you.)

Leveque's Bacchanalia

In the old days people would have greeted an event like this with all manner of pagan observances. Bonfires would have been lit and danced around, entire communities would have suspended – for one night – the rules about sexual intercourse outside of marriage, and whatever consciousness-altering substances available would have been consumed in copious amounts. Oracles and priests would have been busy forecasting the future and explaining what the omen meant. Bacchanalia, neighborhood orgies, drunken feasts, and Dionysus’s Maenads, would have filled this night when the sun is reborn and the moon suffers its little death.

But now? Things are different and more boring. That’s the price we’ve paid for intellectual progress. Oh, a few people still believe and will build their bonfires, a few more don’t believe, but will build a bonfire anyway, and some neighbors may get together for a party, but not an orgy. Mostly the night will pass as any other winter night. Most everyone will be asleep in their warm houses and apartments and will wake up the next morning none the wiser and go off to work or go do their Christmas shopping.

Winter, by the way, probably was not the time of the year that Jesus was born. Shepherds would not have been tending their sheep in the hills around Bethlehem in the winter. They did that in the spring and summer. Most likely, the ancient and persecuted Christians celebrated their holiday during the Roman winter solstice celebrations to hide it. Carousing Romans mistook them for ordinary people celebrating the winter solstice.

Puritan Preacher Increase Mather

The Romans, being Europeans, were not as uptight about sexual matters as current North Americans are. We are the spiritual and, often, the genetic descendants of the Puritans and, as a wit once noted, the only thing harder and more implacable than the rocky, cold, forbidding New England coast where the Pilgrims landed was the Pilgrims themselves. Few Americans have yet recovered from that grim Puritan heritage. H.L. Mencken once defined a Puritan as someone haunted by the belief that somewhere, someone may be enjoying themselves.

Some Americans have recovered. Here is the late A.J. Liebling of the New Yorker writing about sex,

The one thing about the glorious diversion that is no longer written, or if still written never published, is that it remains the most amusing as well as the most instructive of human activities, and one of the most nearly harmless.

But the Puritans disagreed and as a result, your neighbors won’t be coming over for an orgy Monday night.

I assume that most readers of this blog are, like me, children of the Enlightenment, which means we are skeptics. We know, for instance, that a human sacrifice is unnecessary to make spring return this year and that Constantinople did not fall to the Ottomans because of the 1453 lunar eclipse.

Geometry of an Eclipse

But despite its unquestioned advantages for humanity, our enlightenment has come at a cost. Much of the magic and some of the mystery of the universe fade away in the light of reason. Certainly we know that this year’s winter solstice and contemporaneous total lunar eclipse are nothing but an orbital coincidence of the long eons in the ceaseless dance of moon, sun, and earth with no intrinsic meaning other than its physical beauty. We know there is nothing masculine about the energy of the sun, it’s just a thermonuclear furnace. And the moon? Nothing feminine about it. It’s just a cold lifeless ball of matter caught in the earth’s gravitational field. No mystical energy exists to be absorbed from her reflection of sunlight.

But what would be wrong with a willing suspension of disbelief for one night? We do it all the time when we read a work of fiction or when we watch a movie. So pour yourself a glass of wine, get outside Monday night/Tuesday morning, build yourself a little fire, and at least meditate, even if you don’t feel like dancing around the blaze and fornicating with your neighbors. Like Dickens’s Monsieur Defarge, perhaps no vivacious Bacchanalian flame will leap out but you might discover “a smouldering fire” burning in the dark, hidden in the dregs of the wine.

Bohr and Einstein Together

I leave you in the company of Niels Bohr, one of the greatest scientists who ever walked on this earth and, along with Einstein with whom he disputed often, a father of modern physics. This preeminent physicist, scientist and rationalist kept a horseshoe above the entrance to his home. A guest once said to him, “Dr. Bohr, surely you don’t believe that a horseshoe can bring you good luck?” Dr. Bohr responded, “No. But I’ve heard it works for those who don’t believe too.”